Initiate immediate action: IEBC ought to cease offering justifications and enable the process of legislator recall
In Kenya, the Constitution remains the supreme law of the land, and where there is a constitutional vacuum, it must be filled with administrative good faith, not inaction. However, when it comes to the recall of Members of Parliament (MPs), a legal vacuum persists, creating an impasse in the democratic process.
The Kenyan Constitution, passed in 2010, grants the people the right to recall a Member of Parliament (MP) before the end of the term of the relevant House of Parliament (Article 104(1)). This right is a political one, under Article 38, and such rights cannot be rendered meaningless by legislative inaction.
The High Court ruling in Katiba Institute & TEAM v Attorney General (2017) struck down the relevant sections of the 2011 Elections Act that set out the grounds and procedures for recalling MPs, deeming them discriminatory and unconstitutional. As a result, there is currently no valid law to operationalize the constitutional recall right for MPs and Senators.
The Independent Electoral and Boundaries Commission (IEBC) is legally obligated to facilitate recall processes where enabling legislation exists, such as for Members of County Assemblies (MCAs). However, due to this legislative gap, the IEBC cannot process recall petitions for MPs or Senators. The commission has reiterated that it stands ready to implement the recall process once Parliament enacts the necessary legislation.
This creates a constitutional-legal impasse: the constitutional right exists, but it is not operational in law due to the absence of enabling legislation. A current petition challenges IEBC’s refusal to process MPs recall petitions, arguing that the IEBC should accept petitions meeting constitutional thresholds. However, the lack of enabling laws remains an obstacle legislatively created and maintained by MPs themselves.
The courts have held that constitutional rights, including those related to human rights, can be enforced even in the absence of legislation (CREAW & Others v Attorney General, 2013). The IEBC's duty is not to question the right to recall MPs, but to facilitate it. The recall of MPs is a constitutional command (Article 104) and is self-executing. The right to recall an MP is framed as a right, not a privilege subject to parliamentary discretion.
The failure of Parliament to pass a lawful and fair recall mechanism does not mean voters must wait indefinitely to enjoy their constitutional right. The time to exercise the right to recall MPs is now. The Constitution cannot defend itself. It relies on citizens to give it life. The people may exercise their sovereign power either directly or through their democratically elected representatives (Article 1(2)).
If the IEBC continues to delay in facilitating the recall of MPs, Kenyans can use Article 258 to move to court and demand constitutional obedience. The IEBC's attempt to paralyze the right to recall MPs under the excuse of legal gaps is both cowardly and unconstitutional. Voters exercising their right to recall their MPs are exercising direct sovereign power, not begging for permission.
Recall is not about revenge. It is about accountability. It is about the people having the final say. All sovereign power belongs to the people of Kenya (Article 1(1)). The Constitution is a powerful tool for change, but it relies on the active participation of the citizens to bring about that change. The right to recall MPs is but one such avenue for the people to exercise their democratic power and hold their leaders accountable.
- The Kenyan Constitution, under Article 38, ensures that political rights like the right to recall a Member of Parliament, granted in Article 104(1), cannot become void due to policy-and-legislation inaction, as this would render the Constitution ineffective.
- The lack of valid law to operationalize the recall right for Members of Parliament and Senators, due to the striking down of the relevant sections of the 2011 Elections Act, leaves the recall process in a state of limbo, thereby hindering the general-news related to democratic accountability.
- In the absence of enabling legislation, the epaper discourse surrounding the recall of Members of Parliament and Senators in Kenya has focused on the courts' role in enforcing constitutional rights, as well as the need for citizens to proactively exercise their sovereignty, as outlined in Article 1(2), to bring about change and hold their leaders accountable through the recall process.
